Trung Tan Vay v. State

Affirmed and Memorandum Opinion filed March 8, 2007 Affirmed and Memorandum Opinion filed March 8, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00080-CR ____________ TRUNG TAN VAY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 831,681 M E M O R A N D U M  O P I N I O N Appellant, Trung Tan Vay, challenges the trial court=s denial of his post-conviction motion for DNA testing. Appellant raises three issues on appeal. In his first two issues, appellant contends the trial court erred by conducting a hearing on his motion in his absence and without live testimony. In his third issue, appellant contends the trial court erred in denying his motion because he presented sufficient evidence to satisfy the statutory requirements for post-conviction DNA testing. We affirm. Factual and Procedural Background Based on eyewitness testimony by the complainants, a jury found appellant guilty of burglary of a habitation and assessed punishment at thirty-five years= confinement, enhanced by one prior conviction. The trial court signed its judgment on March 1, 2000. This court affirmed the judgment in an unpublished opinion issued March 7, 2002. See Vay v. State, No. 14-00-00480-CR, 2002 WL 369934 (Tex. App.CHouston [14th Dist.] Mar. 7, 2002, pet. ref=d) (not designated for publication). On November 29, 2004, appellant, by and through his appointed counsel, filed a post-conviction motion for DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01B64.05 (Vernon 2006). The State responded, attaching affidavits of officials from the Pasadena Police Department and Harris County District Clerk=s Office. On December 21, 2004, the trial court conducted a hearing on appellant=s motion for DNA testing.[1] Appellant was not present at the hearing. The trial court denied appellant=s motion for post-conviction DNA testing and issued findings of fact and conclusions of law. Discussion In three points of error, appellant contends (1) the trial court violated his due process rights under the Texas Constitution by conducting a post-conviction DNA hearing in his absence, (2) the trial court erred in denying appellant=s motion for DNA testing without conducting an evidentiary hearing with live testimony, and (3) the trial court erred in denying appellant=s motion for DNA testing because appellant=s motion and supporting affidavit satisfied the statutory requirements of article 64.03. I. Did the trial court err by denying appellant=s motion for DNA testing without conducting an evidentiary hearing with live testimony? We turn first to appellant=s second point of error, in which appellant argues the trial court erred in denying his post-conviction motion for DNA testing without conducting an evidentiary hearing with live testimony. The Court of Criminal Appeals has held that applicants for post-conviction DNA testing are not entitled to an evidentiary hearing. Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004) (holding Chapter 64 of the Code of Criminal Procedure does not require the trial court to conduct a hearing); Rivera v. State, 89 S.W.3d 55, 58B59 (Tex. Crim. App. 2002) (concluding applicants for post-conviction DNA testing pursuant to article 64.03 are not entitled to an evidentiary hearing with live testimony). Appellant=s second point of error is overruled. II. Did the trial court violate appellant=s constitutional and statutory rights by conducting a post-conviction DNA hearing in his absence? In first point of error, appellant contends that, by considering the merits of his DNA motion in his absence, the trial court violated his right to due process under the Texas Constitution and his right to be present during his felony prosecution pursuant to article 33.03 of the Texas Code of Criminal Procedure. See Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989). In Thompson v. State, 123 S.W.3d 781, 784B85 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d), this court directly addressed the constitutional issue now raised by appellant and concluded that the state and federal constitutional rights of an applicant for post-conviction DNA testing were not violated when the trial court conducted a hearing in his absence. The Thompson court further held that an applicant for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure Aenjoys neither a presumption of innocence nor a constitutional right to be present at a hearing.@ Id. at 784. Appellant=s reliance on article 33.03 of the Texas Code of Criminal Procedure is also misplaced. Article 33.03 is based on the Confrontation Clause and provides that a defendant must be personally present at trial in all felony prosecutions and in all misdemeanor prosecutions when the punishment may include a jail sentence. See Tex. Code Crim. Proc. Ann. art. 33.03. By its plain language, article 33.03 applies to criminal prosecutions. See id. Unlike a criminal prosecution, a post-conviction DNA hearing does not involve accusations against a criminal defendant. Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). Therefore, appellant does not have a right to confront his accusers at a post-conviction DNA hearing because it is a proceeding initiated by appellant himself. See id. (holding applicant=s exclusion from post-conviction DNA hearing did not implicate his rights under the Confrontation Clause); Davis v. State, No. 14-02-00741-CR, 2003 WL 22019581, at *1 (Tex. App.CHouston [14th Dist.] Aug. 28, 2003, pet. ref=d) (mem. op., not designated for publication) (holding article 33.03 of the Texas Code of Criminal Procedure does not apply to post-conviction DNA proceedings). Neither article 33.03 of the Texas Code of Criminal Procedure nor Article I, Section 10 of the Texas Constitution grant appellant the right to a hearing, or the right to be present at a hearing, concerning his motion for post-conviction DNA testing. See Thompson, 123 S.W.3d at 784B85; Cravin, 95 S.W.3d at 510. Accordingly, appellant=s first point of error is overruled. III. Did the trial court err by denying appellant=s motion for DNA testing? In his third point of error, appellant contends the trial court=s denial of his motion for post-conviction DNA testing was erroneous because he satisfied the elements of article 64.03 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.03.[2] The State argues the trial court correctly denied appellant=s motion because appellant failed to identify any evidence containing biological material which could produce exculpatory results if subjected to DNA testing, and appellant failed to meet his burden of establishing the existence of a reasonable probability that he would not have been convicted if exculpatory results had been obtained through DNA testing. In reviewing a trial court=s decision regarding DNA testing, we employ a bifurcated standard of review. Rivera, 89 S.W.3d at 59 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We afford almost total deference to a trial court=s determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues. Id. Under Chapter 64, a Aconvicted person may submit to the convicting court a motion for DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.@ Tex. Code Crim. Proc. Ann. art. 64.01(a). The convicting court shall order forensic DNA testing when it finds, inter alia, that (1) Aevidence still exists and is in a condition making DNA testing possible,@ and (2) Athe convicted person establishes by a preponderance of the evidence that . . . the person would not have been convicted if exculpatory results had been obtained through DNA testing.@ Id. art. 64.03(a)(1)B(2), (c); Hood v. State, 158 S.W.3d 480, 482 (Tex. Crim. App. 2005). In his motion for DNA testing, appellant requested Athat all physical evidence in these cases [sic] be tested through forensic DNA testing and compared to the DNA of the Defendant to show proof that the Defendant is excluded as the actual assailant in this case.@ Appellant=s motion fails to identify any specific items of evidence containing biological material. Appellant=s motion further provides: Defendant believes that any and all DNA tests, if administered properly, will exclude him as the actual assailant since he is innocent. Since these DNA will exclude him as the actual assailant since he is innocent [sic]. Since these DNA will show an exclusion of the Defendant, there exists a reasonable probability that the Defendant, would not have been prosecuted or a conviction would not have occurred, had the exculpatory results been obtained through DNA testing. Appellant=s supporting affidavit contains no statements of fact in support of his motion. See Tex. Code Crim. Proc. Ann. art. 64.01(a) (requiring motion for DNA testing to be Aaccompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion@). In his affidavit, appellant testified: AI have read the foregoing Motion for Post-Conviction DNA Testing. Each and every factual allegation contained therein is true and correct to my own personal knowledge, or through official records which I have read.@ In its response to appellant=s motion for DNA testing,[3] the State argued that appellant failed to carry his burden of establishing Aa reasonable probability exists that he would not have been convicted for this offense if exculpatory results had been obtained through DNA from the available physical evidence.@ The trial court denied appellant=s motion and issued findings of fact and conclusions of law. In its findings of fact, the trial court found, inter alia, Athat [appellant] fails to show by a preponderance of the evidence that a reasonable probability exists that [appellant] would not have been convicted if exculpatory results had been obtained through DNA testing,@ and A[appellant] fails to meet the requirement of Article 64.03(a)(2) of the Texas Code of Criminal Procedure concerning his burden of proof.@ In his appellate brief, appellant argues, without citing any authority, that the fact that no prior DNA testing has been requested nor [sic] conducted in this case leads to an adverse inference against the State, that proper DNA analysis of which would have exonerated Appellant by showing there was no DNA of the Appellant in or on any of the items taken or tagged as evidence in this case and that therefore he is innocense [sic], and that any DNA found came from some other person. Contrary to appellant=s claim, the law provides no such inference. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)[4] (requiring applicant to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing); Hood, 158 S.W.3d at 483 (holding applicant for DNA testing failed to meet his burden under article 64.03(a)(2) where evidence of another person=s DNA, if discovered, Awould at most establish that [the applicant] acted with someone else in committing the crime@). Appellant was convicted of burglarizing the home of the complainant, William Selva. Vay, 2002 WL 369934, at * 1. The complainant and his wife arrived at their home and saw appellant=s truck parked in the driveway. Id. The complainant went inside to investigate and saw appellant standing six to ten feet away from him. Id. The complainant stepped back outside to inform his wife that someone was in their house. Id. Shortly thereafter, appellant emerged from the house, looked at both the complainant and his wife, got into his vehicle and drove away. Id. A short time later, appellant was stopped by the police approximately two miles away from the complainant=s residence. Id. The complainant was taken to the scene of the traffic stop, where he positively identified appellant=s vehicle as the one he had seen in his driveway and identified appellant as the same man he encountered moments earlier in his home. Id. At trial, both the complainant and his wife positively identified appellant as the burglar. Id. To satisfy his burden under article 64.03(a)(2), appellant was required to show how the results of DNA testing would affect his conviction. See Wilson v. State, 185 S.W.3d 481, 485B86 (Tex. Crim. App. 2006) (holding applicant failed to satisfy the requirements of article 64.03(a)(2) because he did not explain how the presence of a third party=s DNA would affect his conviction and sentence). Neither appellant=s brief nor his motion for DNA testing demonstrate how the results of DNA testing could prove his innocence. Therefore, appellant has failed to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. Accordingly, the trial court did not err in denying appellant=s motion for post-conviction DNA testing. Appellant=s third issue is overruled. Conclusion Having considered and overruled each of appellant=s three issues on appeal, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed March 8, 2007. Panel consists of Justices Yates, Anderson, and Hudson. Do Not Publish C Tex. R. App. P. 47.2(b). [1] It is unclear from the record whether the trial court conducted a hearing in open court. The appellate record does not include a reporter=s record from the December 21, 2004 hearing. However, findings of fact signed by the trial court on January 5, 2005 include a finding that A[o]n December 21, 2004, the trial court conducted a hearing concerning Applicant=s Chapter 64 request, denied Applicant=s motion for DNA testing, and adopted the State=s proposed findings of fact and conclusions of law related to the Chapter 64 proceeding.@ [2] Article 64.03 was amended in 2003. See Acts 2003, 78th Leg., ch. 13, ' 3, eff. September 1, 2003. The legislature expressly provided that the amended version of article 64.03 applies to Aa convicted person who on or after the effective date [Sept. 1, 2003] of this Act submits a motion for forensic DNA testing of evidence . . . .@ See Acts 2003, 78th Leg., ch. 13, ' 8, eff. September 1, 2003. Appellant=s motion for DNA testing was filed on November 29, 2004, a date after the effective date of the 2003 amendment. Therefore, the amended version of article 64.03 applies to appellant=s motion. See id. [3] On December 17, 2004, the State filed AState=s Motion Requesting the Denial of DNA Testing.@ [4] An applicant for post-conviction DNA testing must satisfy the requirements of article 64.03(a)(2), which provides: (2) the convicted person establishes by a preponderance of the evidence that: (A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and (B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. Tex. Code Crim. Proc. Ann. art. 64.03(a)(2).